DEFENDANTS POST-TRIAL MEMORANDUM OF LAW

PRELIMINARY STATEMENT

In this case of first impression, plaintiffs argue for an interpretation of the DMCA that
would give copyright owners the power to eliminate fair use of their works, by giving them
direct authority over all physical means usable to display or copy those works. This Court's
decision will have far reaching implications - not just for publishers like Mr. Corley and
2600.com - but on the development of new technologies and on the flow of information and
ideas on the web, since virtually all intellectual property will soon be in digital form.
The DMCA is complex and inconsistent. One part says that it doesn't affect free speech,
the press, or fair use; other parts appear to outlaw the publication of tools for these purposes, or
the act of making fair use. The legislative history provides little guidance given the divergent
and often conflicting views expressed.

If Congress truly intended to give copyright holders the right to control and eliminate fair
use of their work, it has radically changed the boundaries between copyright and the First
Amendment. The contours of these boundaries have major societal implications, altering the
relationships among citizens, consumers, engineers, academics, businessmen, creators, scientists,
and publishers. The statute, to the extent it attempts to alter the scope of the First Amendment,
must be strictly scrutinized.

The tool at issue, DeCSS, permits forms of fair use, such as brief excerpting or
quotation, scientific study, or archiving by libraries; plaintiffs' authorized players deliberately
do not. The Court should not ignore these rights on the theory that this is not an infringement
action. If Congress has created new ways for copyright owners to restrict the literary, political,
or scientific discourses protected by fair use and the First Amendment, these new ways must
also be applied consistently with the First Amendment.

An equally important category of use is ordinary, straightforward use. By this we mean
the legal right to read a book that is in one's legal possession; to watch such a movie; to listen to
such a song. The traditional copyright statute does not grant the copyright holder exclusive
control over ordinary use (e.g., private viewing is not controlled under the exclusive right of
public performance.) The right of a purchaser to merely use the purchased work has been so
obvious that it has never been challenged -- until this case.

Plaintiffs allege that privately watching a purchased movie using a disapproved player is
a violation of the copyright owner's legal rights; that the mere existence of a Linux DVD player
which allows one to watch legitimate movies purchased anywhere on the globe is actionable.
We hope that this Court will find that legitimate holders of copyrighted works have an unfettered
legal right to privately experience those works (in addition to any fair use rights they may
have).

In January, when the Court granted a preliminary injunction, the plaintiffs painted
defendants as scofflaws, hawking burglar tools that would smash honest businesses to their
knees. The stipulated and proven facts tell the opposite story. The authors of these tools are
honest, thoughtful, and talented people, doing world-class, cutting-edge computer programming.

They are creating programs whose use is entirely legitimate to view DVDs that they
purchased with their own money B and are taking care to not violate the rights of others. They
publish their work in a decades-long method of public "open source" collaboration with roots all
the way back into the scientific method.

Plaintiffs' story in January was that the DMCA was a straightforward law, with simple
elements, no First Amendment issues, and no relation to copyright infringement. Prove A, B,
and C, and squelch opponents. But all their gnashing and wailing, then and now, was about a
fiction of massive copyright infringement. At trial, after having nearly ten months to
investigate, they could not produce even one instance of such infringement, on a CD or a
DVD or on the Internet.

Organized criminal copyright infringement of movies existed before DeCSS and will continue
after DeCSS; existing legal and enforcement tools keep it in check. Plaintiffs have no evidence
that DeCSS had any effect, positive or negative, on the incidence of copyright infringement.
Their unimaginative fever-dreams should not convince the Court to order the rest of society to
stop inquiring, innovating, or publishing.

Plaintiffs led this Court to believe that DeCSS was no more than low level computer code
with little or no expressive content warranting First Amendment protection. As Dr. Touretzky's
testimony made plain, to prohibit source code effectively, one must also prohibit English
explanation, since any person with basic computer skills can easily convert one into the other.
Object code contains most of the same expressive elements that were in the source code and the
English explanation; indeed, DeCSS itself was created by examining the object code of the Xing
player and extracting the essential ideas from it. Thus, if it declares that the posting of any form
of DeCSS (or any computer program) is illegal, the Court would block and chill many forms of
protected speech.

In sum, the Court must find an interpretation that maintains fair use of technologically-
protected works, and allows open publication of computer programs within the framework of the
DMCA, or else find Section 1201 of that statute to be unconstitutional under the First Amendment.

ARGUMENT

I. THE PROHIBITIONS CONTAINED IN SECTION 1201 MUST BE SUBJECT
TO THE LIMITATIONS ON THE RIGHTS OF COPYRIGHT HOLDERS
IMPOSED BY THE FIRST AMENDMENT AND THE FAIR USE DOCTRINE

The Court should find that Eric Corley's decision to post the DeCSS computer program
on the 2600.com website as part of his magazine's report on the release, existence, and function
of DeCSS was a protected exercise of the defendants' constitutionally guaranteed rights of a free
and open press, rather than a violation of Sections 1201(a)(2) and 1201(b) of the DMCA as plaintiffs
claim.

Plaintiffs argue that the DMCA, without exception, prohibits any person from offer[ing]
to the public, provid[ing] or otherwise traffic[king] in any technology, product, service, device,
component, or part thereof if it permits a consumer to circumvent certain defined technological
measures that control access to a copyrighted work. Plaintiffs further argue that DeCSS is a
"technology" within the meaning of the statute and that defendants' posting of and subsequent
linking to the DeCSS program and source code on the internet constitutes an offering or
trafficking of such technology in violation of Section 1201. Plaintiffs' arguments rely on an
impermissibly narrow and unconstitutional reading of Section 1201. They ignore the mandates of the
Constitution, the broader language and purpose of the DMCA's provisions, and the heart of the
Copyright Act, which together unambiguously set forth the scope of and limitations on a
copyright holder's exclusive rights in copyrighted material. For the Court to adopt plaintiffs'
position, it would have to agree that Congress intended radically and fundamentally to change
copyright law by prohibiting any access to digital copyrighted works, even if such access is
necessary to make fair use by those in lawful possession of the work.

A far more rational view is that Congress intended the anti-circumvention provisions of Section
1201 to be tools of limited purpose, designed to assist the copyright holder in enforcing the
traditional rights granted to copyright holders, while preserving the existing, crucial, statutory
limitations on the reach of those rights. See 17 U.S.C. Sections 106-120. Foremost among the rights
of the public to make non-infringing uses of copyrighted materials that were left undisturbed by
Section 1201 is the right of fair use. As set forth below, the inclusion of fair use in Section 1201 is required
as a matter of constitutional necessity. Indeed, there are ample grounds for construing Section 1201 to
include and be limited by the public's rights of fair use.

1. Fair Use is Mandated by the First Amendment to Save the Copyright
Act's Restrictions on Freedom of Speech from Violating the Constitution

This Court has already recognized that the Supreme Court and the Second Circuit have
held that fair use has a constitutional magnitude: To the extent there is any tension between
free speech and protection of copyright, the Court has found it to be accommodated fully by
traditional fair use doctrine, with expression prohibited by the Copyright Act and not within the
fair use exception considered unprotected by the First Amendment. Universal, 82 F. Supp. 2d at
220 (citing, Harper & Row Publishers Inc. v. Nation Enterprises, 471 U.S. 539, 551 (1985);
Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert.
denied, 434 U.S. 1014 (1978) Conflicts between interests protected by the First Amendment
and the copyright laws thus far have been resolved by application of the "fair use doctrine.");
Ninon Keizai Shimbun Inc. v. Comline Business Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999). Fair
use is a flexible doctrine mandated by the First Amendment; it serves as sort of a check valve in
balancing the competing interests of the cherished rights of freedom of speech and the press and
the limited monopoly right granted to authors under the copyright law. In Harper & Row, 471
U.S. at 560, the Supreme Court found no need to create a special "First Amendment" exception
to copyright law "[i]n view of the First Amendment protections already embodied in the
Copyright Act's distinction between copyrightable expression and uncopyrightable facts and
ideas, and the latitude for scholarship and comment traditionally afforded by fair use."

However, just because the careful design of copyright law obviates the need for a special
additional First Amendment exception does not mean that Congress is free of judicial scrutiny
under the First Amendment when and if it seeks to alter the speech-protecting contours of
copyright law. In fact, the opposite is true. Harper & Row underscores the Supreme Court's
express reliance on fair use privileges to permit copyright law to exist in balance with the First
Amendment. Indeed, the Court is clear that "copyright is intended to increase and not to impede
the harvest of knowledge." Harper & Row, 471 U.S. at 545. Fair use, for commentary, criticism,
and scholarship, including commercial use, helps to assure that copyright remains the engine of
free expression that Congress is authorized to fuel, Ato promote the progress of science and useful
arts. Const., Art.1, C1.8. If the DMCA, either on its face or as interpreted or applied by
plaintiffs, prohibits the dissemination of a fair use utility that qualifies for First Amendment
protection, the Court must find the statute unconstitutional.

One of DeCSS's several substantial and uncontroverted non-infringing uses is that it
permits a DVD owner to exercise his or her right to make fair use of copyrighted material on the
DVD. Under plaintiffs' sweeping interpretation of Section 1201's prohibitions, however, no one
would ever be permitted to make a technology that decrypts the encrypted material on DVDs
available to the public, thereby effectively exterminating the public's right to make fair use of
DVD movies. The First Amendment does not permit this result, and Congress could not have
intended it. See, e.g., 144 Cong. Rec. S4890 (daily ed. May 14, 1998) (Statement of Senator
Ashcroft)(Section 1201 is "not [aimed] at legitimate consumer electronics and computer products that
have substantial non-infringing uses. [N]either section 1201(a)(2) nor section 1201(b) should be
read as outlawing any device with substantial non-infringing uses"); H.R. Rep. No. 105-551, pt.
1, at *10, 18 (1998) ("An individual who may be prohibited from circumventing to gain access to
a work for improper purposes, nonetheless may do so in order to make fair use of a work which
he or she has lawfully acquired"); 144 Cong. Rec. H7099 (daily ed. Aug. 4, 1998) (statement of
Rep. Dingell) ("[T]his bill will preserve the legal right of information consumers to make 'fair
use' of copyrighted works just as they have done for over one hundred years"); accord S. Rep.
No. 105-190, at *26 (1998) (This paragraph does not apply to the subsequent actions of a person
once he or she has obtained authorized access even if such actions involve circumvention).
In the context of Section 1201, fair use is both a privilege and a right guaranteed by Section
1201(c)(1): "Nothing in this section shall affect rights, remedies, limitations, or defenses,
including fair use, under this title." Section 1201(c)(1) sets forth Congress' plain intention to
preserve the right of fair use in Section 1201 as an affirmative right and as a limitation on the exclusive
rights granted to authors by the Copyright Act. The phrase "including fair use" cannot be limited
only to the fourth item in the series preceding it since fair use is not merely a defense, but must
refer to each of the items in the series, including Congress' intent that Section 1201 not "affect" such
"rights" or "limitations" as fair use. See also Jane C. Ginsburg, Copyright Use and Excuse on the
Internet, 24 Colum. VLA J.L. & Arts (forthcoming 2000)(attached as Exhibit G to the Reply
Declaration of Edward Hernstadt, dated June 14, 2000 ("the phrase 'including fair use,' as set off
in commas, modifies not 'defenses to copyright infringement,' but 'limitation . . . under this
title.'").

Plaintiffs' reading of the Section 1201 anti-circumvention provisions would vest absolute power
over copyrighted materials such as movies in the hands of the copyright holder, who could block
all access to materials simply by adding a technological device to insulate the work from fair
uses. Plaintiffs are attempting to rewrite the Copyright Act by reading a single provision of the
statute in a vacuum. Permitting a computer program like DeCSS, which provides consumers
with the necessary means to exercise their fair use rights in a variety of ways, including quoting
from a movie, playing it on the computer operating system of their choice, evading improper
region coding restrictions, and the like, is no more than the recognition that Section 1201 must track the
limitations on copyright included in the Act. The fair uses thus permitted are all protected
"substantial non-infringing uses." See Sony Corp. v. Universal City Studios, 464 U.S. 417, 441
(1984); Sony Corp of America v. Connectix, 203 F.3d 596 (9th Cir. 2000).

Finally, given the huge number of sales of DVDs and the increasing likelihood that DVD
will soon become the only format on which movies will be distributed to the public, plaintiffs'
claim that Section 1201(a)(2) has nothing to do with fair use because the public has access to alternate
formats (like VHS), is both misleading and wrong. Not only are some materials unique to the
DVD format today, and the quality of DVD vastly superior to that of VHS, but any movie that
will only be available on DVD will be forever and completely unavailable to the public for fair
use. This cannot be squared with the Copyright Act or the doctrine of fair use. See, e.g., Sony
Corp. of America v. Universal City Studio, 464 U.S. 417 (1984); Sony Corp of America v.
Connectix, 203 F.3d 596 (9th Cir. 2000).

2. "Authority" in Section 1201(a)(2) is the Authority
Vested in the Copyright Holder by the Copyright Act

Other sections of Section 1201 support the foregoing analysis of Congress' intent to limit the
scope of the anti-circumvention provisions. In particular, guidance is provided by ''
1201(a)(3)(A) and (B) defining, respectively, "circumvent a technological measure" and
"effectively controls access to a work" for the purposes of subsection 1201(a). The definitions of
both terms are tied to the "authority of the copyright owner" so that "circumvention" is defined in
essence, as decryption without the copyright owner's authority, and "effectively controls access"
means that access to the copyrighted material must be gained by using a process with the
authority of the copyright owner. Both definitions beg the question of what constitutes Athe
authority of the copyright owner.

We agree with plaintiffs and the Court that >the authority of the copyright owner' is a
matter of law, not a matter of fact. (Trial Tr. at 486-88). We argue that under the Copyright Act,
consumers are given the authority to make use of a copyrighted work when they purchase it.
Once there is a sale, the buyer has the right to perform all acts with it that are not exclusively
granted to the copyright holder. For example, the buyer has the right to decrypt and view the
movie in their own home.

One might think that the buyer does not have the right to decrypt the work (e.g. in order
to view it) because the DMCA withholds that authority. But decryption and circumvention are
two different things. The DMCA does not outlaw decryption; it only outlaws "circumventing"
the encryption. Decrypting a work with the authority of the copyright holder is legal under the
DMCA. The definition of circumvention reveals that to circumvent, one must be acting without
the authority of the copyright holder. Any statement that a buyer does not have the authority to
decrypt, because the DMCA prohibits decryption without authority, is a circular argument and
thus invalid.

Therefore, the DMCA itself does not grant or withdraw the authority to decrypt a work.
Only the rest of the Copyright Act does. There is nothing in the rest of the Copyright Act that
provides copyright owners the exclusive right to control decryption (or private viewing),
therefore the public has the authority to decrypt and view copyrighted works that they have
purchased.

If "the authority of the copyright owner" is a matter of law, and gives no control over
decryption or private viewing to the copyright owner, then no contracts, out in the world,
between the copyright owner and the makers of some players, can limit it. The buyer's authority
to decrypt and view does not depend on the fact situation; it is inherent in the law. DVD owners
are free to decrypt their DVDs and view them on an "unlicensed" Linux player, or using DeCSS.
This is not sophistry or rhetoric; this is a clear analysis of the text and intent of the
DMCA and the copyright law. Plaintiffs would have the Court conflate "decryption" with
"circumvention," and similarly conflate the DMCA with the DVD CCA license. The above
analysis makes it clear that what controls consumers is the Copyright Act, not the DVD CCA
license, and that neither the original Copyright Act nor the DMCA prohibits consumers from
accessing or decrypting a work they have purchased.

It is telling that plaintiffs define the requisite "authority" as being granted only when a
consumer purchases a CSS equipped DVD and a DVD CCA licensed DVD player. This only
gives the consumer the right to watch the DVD. However, nothing in the Copyright Act requires
that the DVD player be authorized by the copyright owner. As suggested by the Court during the
cross-examination of Marsha King (Trial Tr. at 538-541), "authority" must mean such authority
as Congress has granted to the copyright owner in the Copyright Act. That is, the copyright
owner has, by distributing a work he or she owns on DVD, authorized the consumer to make
such uses of the work permitted under existing Copyright law, and no more. Infringement is not
authorized, public performance of the movie is not authorized, but fair (and related) uses of the
copyrighted materials are. Thus, the definitions of the key terms "circumvent" and "effectively
controls access," which are at the heart of the conduct Congress sought to regulate in Section 1201,
themselves limit the scope of the statute by importing into Section 1201 the limitations on the
copyright owners' rights set forth in the Copyright Act. See Vault Corp. v. Quaid Software Ltd.,
655 F. Supp. 750 (E.D. La. 1987)(defendant's loading of plaintiff's software security system into
computer in process of devising software to unlock plaintiff's security system is not
infringement), aff'd, 847 F.2d 255 (5th Cir. 1988); C.M. Paula Co. v. Logan, 355 F. Supp. 189
(N.D. Texas 1973)(copyright proprietor has no right of control over use or disposition of
individual copies of copyrighted work once he has sold or otherwise disposed of them).
Finally, Section 1201(b) covers the circumvention of a "technological measure that effectively
protects the right of a copyright holder." However, Section 1201(b) is essentially not implicated in this
case. Plaintiffs have not alleged that any of their copyrights were infringed as a result of
defendants' actions, and have in fact stipulated that they are not aware of any instances at all of
DeCSS being used to make or distribute illegal copies of a DVD movie; nor have plaintiffs
alleged any other violation of their "rights." As explained below, plaintiffs must first be injured
in order to seek a remedy provided by the DMCA. Obviously, no such injury exists here.

3. The Exemptions Contained in Section 1201(a)(1)
Must Be Read in Conjunction With 1201(a)(2)
or the Statute Will Deny the Public Access
To the Tools Required to Perform the Permitted Acts of Circumvention

Congress certainly did not intend to destroy the traditional rights of the public by barring
technologies that facilitate circumvention for lawful fair use purposes. A statutory scheme that
facially permits fair use but only by those skilled enough to write their own DeCSS program is as
undesirable as it is unlawful. Such a regime would limit the ability to exercise essential rights
such as fair use to what Barbara Simons, now the President Emeritus of the Association for
Computing Machinery -- the foremost association of computer scientists C called "a small
technological elite." The statutory analysis contained in sections A and B above cures this
potential conundrum. So too does the necessary statutory approach of reading two parts of the
same subsection - Section 1201(a) - together in order to give proper meaning to both.
Thus, the scope of Section 1201(a)(2) is bounded by the exemptions set forth in Section 1201(c)-(j).
Of particular relevance to this case based on the testimony presented at trial are the exemptions
for the permissible fair uses of reverse engineering, Section 1201(f). It is now uncontroverted that
DeCSS was written as part of and in order to further the creation of an open-source DVD player
for the Linux operating system, just as defendants have long stated.

Jon Johansen testified that he wrote DeCSS to further the LiVid project; that he
immediately sent the source code for DeCSS to Derek Fawcus, a programmer working on the
CSS portion of the LiVid player who rewrote the program for Linux; and that he wrote the
program for Windows rather than for Linux in order to test it properly because Linux did not
then support the UDF file system used on DVDs. (Trial Tr. at 619-623). Matt Pavlovich, the
leader of the LiVid project, testified that the DeCSS program as rewritten by Fawcus was
incorporated in the LiVid DVD player, and that the program was essential to the project's
success. (Trial Tr. at 949-960). DeCSS was developed for the purpose of enabling
interoperability between the LiVid DVD player and Windows DVD players such as the Xing
player. There is no evidence that anyone involved in the development of DeCSS engaged in any
acts of infringement.

Section 1201(f)(2) provides that:

Notwithstanding the provisions of subsections (a)(2) and (b), a
person may develop and employ technological means to
circumvent a technological measure, or to circumvent protection
afforded by a technological measure . . . for the purpose of
enabling interoperability of an independently created computer
program with other programs, if such means are necessary to
achieve such interoperability, to the extent that doing so does not
constitute infringement under this title.

Because DeCSS and the LiViD player were developed for this exempt purpose, their
creation was protected under this exemption. The distribution of DeCSS and the LiViD player is
protected under 1201(f)(3) "to the extent that doing so does not constitute [copyright]
infringement" or violate other laws. Defendants established that their distribution of DeCSS was
not for copyright infringement (Trial Tr. at 831), and that they have not sold a copy of a DVD
disk or sent a movie on the Internet using DeCSS (Trial Tr. at 783). There also is no evidence of
any concrete case of third party copyright infringement using DeCSS. Defendant's publication of
DeCSS does not violate other laws. Therefore, distribution of DeCSS and the LiViD player are
permitted under 1201(f)(3).

Congress was, of course, very concerned that the DMCA not act to stifle new
technologies by prohibiting reverse engineering and encryption research, with one prominent
committee member warning that:

If history is a guide, however, someone may yet try to use this bill
as a basis for initiating litigation to stop legitimate new products
from coming to market. . . I have sought to make clear that any
such effort to use the courts to block the introduction of new
technology should be bound to fail.

II. THE DMCA IS UNCONSTITUTIONAL ON ITS FACE AND
AS PLAINTIFFS SEEK TO HAVE IT INTERPRETED AND APPLIED

DeCSS enables the public to use legitimately purchased DVDs in ways that constitute fair
use under the copyright law. If the Court finds that the DMCA does not incorporate traditional
limitations on copyright law, including the right of fair use, either on its face or by interpretation,
then the DMCA violates the First Amendment because it fundamentally alters the contours of
copyright law and undermines the First Amendment protections traditionally afforded by fair
use.

"Deciding whether a particular regulation is content based or content neutral is not always
a simple task." Turner Broadcasting System Inc v. FCC, 512 U.S. 640, 642 (1994). We submit
that Section 1201(a)(2) of the DMCA constitutes a content based restriction because it only
applies to a particular form of computer code, namely, a software utility which is capable of
circumventing a technological measure that effectively controls access to a copyrighted work.
This is so because the ban urged by plaintiffs is complete and allows for no alternative forum for
discussing and disseminating DeCSS or any other circumvention code. A restriction is content
based where, as here, it prohibits discussion of an entire subject. Boos v. Barry, 485 U.S. 312,
319 (1998)(noting that the "First Amendment's hostility to content-based regulations extends . . .
to prohibition of public discussion of an entire topic"). Accordingly, the statute is subject to the
"strict scrutiny" test applicable to content based regulations. It must be shown that the regulation
is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.
Id. at 321. Section 1201 of the DMCA fails to meet this rigorous test because, at a minimum, it
is not narrowly drawn.

Nor would it pass muster under the less demanding intermediate test applicable to content
neutral restrictions. See United States v. O'Brien, 391 U.S. 367 (1968). Under O'Brien, a
content neutral regulation will be sustained only if "it furthers and important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest." Id. at 377. The governmental interest in
question must be unconnected to expression in order to come under the less demanding rule in
O'Brien. Texas v. Johnson, 491 U.S. 404, 407 (1989). Narrow tailoring under O'Brien requires
a finding that the means chosen do not "burden substantially more speech than is necessary to
further the government's legitimate interests." Turner, 512 U.S. at 662. This test cannot be met
here either factually or legally.

The Framers of the Constitution wrote in language striking for its enduring clarity:
"Congress shall make no law . . . abridging the freedom of speech, or of the press." Yet this
simple constitutional guarantee and command is often blurred, and is under constant attack. In
this case, plaintiffs essentially argue that the DMCA can, consistent with the First Amendment,
ban all publication and collaborative improvement of DeCSS on the Internet because it can be
used to circumvent or decrypt the encryption on DVDs, despite ample and uncontroverted
evidence of substantial non-infringing uses for the utility. The same arguments have been made
before in other contexts and rejected and they must be rejected here.

1. DeCSS is Protected Speech

At this stage, there can no longer be any serious dispute that the DeCSS computer
program, both as source and object code, is a form of expression entitled to the full protection of
the First Amendment. As the Supreme Court has explained, "all ideas having even the slightest
redeeming social importance," including those concerning "the advancement of truth, science,
morality, and arts" have the full protection of the First Amendment. Roth v. United States, 354
U.S. 476, 484 (1957)(quoting 1 Journals of the Continental Congress 108 (1774)). DeCSS is no
less deserving of such protection than music, for which the language of expression is musical
notes that are unintelligible to the average person, or any form of art, where the range of
expression is virtually limitless. See Hurly v. Irish-American Gay, Lesbian and Bisexual Group,
515 U.S. 557, 569 (1995)(noting that the versatile scope of the First Amendment
"unquestionably shield[s]" such diverse forms of expression as the artwork of Jackson Pollack,
the music of Arnold Schoenberg, and the Jabberwocky verse of Lewis Carroll).

In Junger v. Daley, 209 F.3d 481, 484 (6th Cir. 2000), the Sixth Circuit Court of Appeals
held that computer source code is fully protected by the First Amendment, noting that "computer
source code, though unintelligible to many, is the preferred method of communication among
computer programmers." In this case, Dr. Touretzky has taught us that object code is just another
variation, preferable in his view over English and source code for expressing certain ideas, but
otherwise equivalent and no less worthy of protection. (Trial Tr. at 1065-1093; Defendants'
Exhibits CCN; CCO; CCP; CCQ (Gallery of CSS Descramblers); and BBE (Touretzky article)).
There is no more reason to differentiate under the First Amendment between different
levels of computer code than there would be to differentiate between spoken languages or
different forms of art. In Yniguez v. Arizonans for Official English, 69 F.3d 920, 934-36
(9thCir. 1995)(en banc), vacated and remanded on other grounds, 520 U.S. 43 (1997), the court
observed:

[S]peech in any language consists of the "expressive conduct" of vibrating one's
vocal chords, moving one's mouth and thereby making sounds, or of putting pen
to paper, or hand to keyboard. Yet the fact that such "conduct" is shaped by
language--that is, a sophisticated and complex system of understood meanings--is
what makes it speech. Language is by definition speech, and the regulation of any
language is the regulation of speech.

69 F.3d at 934-35.

In Bernstein v. United States Department of State, 922 F. Supp. 1426 (N.D. Cal. 1996),
the court noted, "the functionality of a language," as in the case of computer code, "does not
make it any less like speech." The court's reasoning is unassailable:

Nor does the particular language one chooses change the nature of language for
First Amendment purposes. This court can find no meaningful difference between
computer language, particularly high-level languages as defined above, and
German or French. All participate in a complex system of understood meanings
within specific communities. Even object code, which directly instructs the
computer, operates as a "language." When the source code is converted into the
object code "language," the object program still contains the text of the source
program. The expression of ideas, commands, objectives and other contents of the
source program are merely translated into machine-readable code.

922 F. Supp. at 1435. Consistent with Dr. Touretzky's observations that object code is better for
communicating certain ideas, the Yniguez court noted that "the choice to use a given language
may often simply be based on a pragmatic desire to convey information to someone so that they
may understand it." 69 F.3d at 935.

The Bernstein court further observed:

[E]ven if Snuffle source code, which is easily compiled into object code for the
computer to read and easily used for encryption, is essentially functional, that
does not remove it from the realm of speech. Instructions, do-it-yourself manuals,
recipes, even technical information about hydrogen bomb construction, see United
States v. The Progressive, Inc., 467 F. Supp. 990 (W.D. Wisc. 1979), are often
purely functional; they are also speech.

Music, for example, is speech protected under the First Amendment. See Ward v.
Rock Against Racism, 491 U.S. 781, 790 (1989). The music inscribed in code on
the roll of a player piano is no less protected for being wholly functional. Like
source code converted to object code, it "communicates" to and directs the
instrument itself, rather than the musician, to produce the music. That does not
mean it is not speech. Like music and mathematical equations, computer language
is just that, language, and it communicates information either to a computer or to
those who can read it.

Defendants argue in their reply that a description of software in English informs
the intellect but source code actually allows someone to encrypt data. Defendants
appear to insist that the higher the utility value of speech the less like speech it is.
An extension of that argument assumes that once language allows one to actually
do something, like play music or make lasagne, the language is no longer speech.
The logic of this proposition is dubious at best. Its support in First Amendment
law is nonexistent. 922 F. Supp 1435-36. Thus, a computer program such as DeCSS cannot simply be outlawed
without carefully considering its expressive content.

In New York Times Co. v. United States, 403 U.S. 713, 723 (1971), the Supreme Court
reaffirmed the proposition that "any prior restraints on expression come to this Court bearing a
heavy presumption against its constitutional validity." Despite the presence of what the
Government perceived to be an overwhelming national security interest justifying the
suppression of information, the Court refused to enjoin the publication of the Pentagon Papers,
with Justice Brennan noting in a concurring opinion that "the First Amendment tolerates
absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that
untoward consequences may result." 403 U.S. at 725-26.

Justice Brennan also observed that prior restraints on speech had only been sustained in a
narrow class of cases when the Nation "is at war." Id. at 726. Copyright cases were found not to
be relevant because the Government was not asserting an interest in the particular form of the
expression. Likewise, the plaintiffs here do not claim any copyright interest in DeCSS or CSS,
although computer code is eminently copyrightable. Rather, as in New York Times, plaintiffs
are seeking to suppress the ideas expressed in the DeCSS algorithm and to squelch the
communication of any computer program or related technology that can be used to access the
materials stored on a DVD.

Notably, in New York Times, the Government had argued that 18 U.S.C. Section 793(e), a
section of the Espionage Act, applied on the theory that the word "communicates" was broad
enough to encompass the act of publication. But in the court below, Judge Gurfein had rejected
the argument because other sections of the statute specifically used the word "publish" in
addition to "communicate" and because Congress had specifically said "Nothing in this Act shall
be construed to . . . in any way limit or infringe upon freedom of the press or of speech as
guaranteed by the Constitution of the United States." 403 U.S. at 720-23.

Two other sections of the DMCA, however, indicate that plaintiffs' interpretation of the
statute is not what Congress intended. First, Section 1203(b)(1) allows the Court to grant temporary
and permanent injunctions as it deems reasonable to prevent or restrain a violation, but it
underscores that in no event shall the Court "impose a prior restraint on free speech or the press
protected under the 1st amendment to the Constitution." Second, like it did in the Espionage Act,
Congress made clear in Section 1201(c)(4) that "Nothing in this section shall enlarge or diminish any
rights of free speech or the press for activities using consumer electronics,
telecommunications, or computing products." (Emphasis added).

Furthermore, the legislative history accompanying the DMCA indicates that at least some
members of Congress understood Section 1201 to be limited to conventional devices, specifically
"black boxes," as opposed to computer code. For example, Senator Ashcroft, who drafted
Section 1201's savings clause for legitimate devices, stated:

In discussing the anti-circumvention portion of the legislation, I think it is worth
emphasizing that I could agree to support the bill's approach of outlawing certain
devices because I was repeatedly assured that the device prohibitions are aimed at
so-called "black boxes" and not at legitimate consumer electronics and computer
products that have substantial non-infringing uses. I specifically worked for and
achieved changes to the bill to make sure that no court would misinterpret this bill
as outlawing legitimate consumer electronics devices or computer hardware. As a
result, neither section 1201(a)(2) nor section 1201(b) should be read as outlawing
any device with substantial non-infringing uses . . . .

144 Cong. Rec. S4890 (Daily ed. May 14, 1998)(Statement of Senator Ashcroft). See also H.R.
Rep. No. 105-90 at *28-29 (1998)(paragraph (a)(2) . . . is drafted carefully to target "black
boxes," and to ensure that legitimate multi-purpose devices can continue to be made and sold.").
Thus, there is no clear indication that Congress intended the word "technology" in Section 1201 to
apply to computer code or to limit the application of the fair use doctrine and this Court should
not infer such an intent on such an ambiguous record. Certainly, if hardware devices with
substantial non-infringing uses are not outlawed, neither are software utilities.

2. Overbreadth

The DMCA as interpreted by plaintiffs and previously by this Court is also overbroad: it
would prohibit defendants from posting and making programs such as DeCSS available in any
form, from English to any level of computer code. It is also overbroad because it would prohibit
fair uses of DVDs by means of the DeCSS program. As explained in Broadrick v. Oklahoma,
413 U.S. 601, 612 (1973), the overbreadth doctrine enables litigants "to challenge a statute, not
because their own rights of free expression are violated, but because of a judicial prediction or
assumption that the statute's very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." A[W]here conduct and not merely speech is
involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep." Id.

Like the Communications Decency Act, which the Supreme Court struck down as
unconstitutional in Reno v. ACLU, 521 U.S. 874 (1997), the DMCA as interpreted by plaintiffs
would effectively suppress a large amount of speech that people have a constitutional right to
receive and address to one another. The evidence presented by defendants clearly shows that
DeCSS has substantial non-infringing and non-commercial uses as a utility that enables DVD
owners to play DVDs on Linux systems and otherwise make fair use of DVDs. The DMCA
must be read to incorporate and allow for such uses or it is unconstitutional.

Plaintiffs believe that the licensing structure plaintiffs and the DVD CCA constructed
permits them to dictate that members of the public who purchase their movies on DVDs (but not
on VHS or VCD) must also purchase an approved, CSS-licensed DVD player on which to view
that movie. The DMCA, however, was not intended to expand the copyright monopoly. The
exclusive rights granted to the copyright holder under Section 106 do not extend to the private
viewing of copyrighted works.

The DMCA simply does not grant an exclusive right to authorize distribution of the
means of access to a given work. This is an unwarranted extension of the Copyright Act to non-
copyrightable material.

In a case like this, in which Congress has not plainly marked our course, we must be
circumspect in construing the scope of rights created by a legislative enactment which never
contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart's
exposition of the correct approach to ambiguities in the law of copyright:

The limited scope of the copyright holder's statutory monopoly,
like the limited copyright duration required by the Constitution,
reflects a balance of competing claims upon the public interest:
Creative work is to be encouraged and rewarded, but private
motivation must ultimately serve the cause of promoting broad
public availability of literature, music, and the other arts. . . .

Sony Corp. v. Universal City Studios, 464 U.S. 417, 43 l-32 (1984).
In Sony Corp., the Court noted that copyright laws are founded on limited grant of power
whose "sole interest" and "primary object" are the general benefits that may be derived by the
public from the release of products of the creative genius of authors, with the reward provided to
the copyright owner as being "a secondary consideration." The Court emphasized that "[t]he
monopoly privileges that Congress may authorize" under Article I, Section 8, of the Constitution "are
neither unlimited nor primarily designed to provide a special private benefit." Id.
More importantly, the Court noted that copyright "protection has never accorded the
copyright owner complete control over all possible uses of his work" because "some are in the
public domain." 464 U.S. at 432-33. Specifically, "[a]ny individual may reproduce a
copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to
such a use." Id. Furthermore, "anyone who is authorized by the copyright owner to use the
copyrighted work in a way specified in the statute or who makes a fair use of the work is not an
infringer of the copyright with respect to such use." Id. The same is true here. A person with a
Linux platform who buys or otherwise lawfully acquires a DVD must be deemed to have the
authority of the copyright owner to access the DVD. Cf. D. Nimmer, A Riff on Fair Use In The
Digital Millennium Copyright Act, 148 U. Pa. L. Rev. 673, 692 and n.93 (2000).

3. Vagueness

As interpreted by plaintiffs, the DMCA also fails to pass constitutional muster on First
Amendment grounds because of vagueness. A statute can be impermissibly vague for either of
two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages
arbitrary and discriminatory enforcement. Hill v. Colorado, 2000 U.S. Lexis 4486, at *53, 68
U.S.L.W. 4683 (June 28, 2000), citing Chicago v. Morales, 527 U.S. 41, 56-57 (1999).
Generally, neither hypertechnical theories nor speculation about possible vagueness in
hypothetical situations not before the court will support a facial attack on a statute when it is
unquestionably valid "in the vast majority of its intended applications." Id., citing United States
v. Raines, 362 U.S. 17, 23 (1960). That, however, is not true here.

The terms at issue here are not commonplace terms with well defined meanings. To the
contrary, we are dealing with emerging technologies in a rapidly developing area where
Congress admittedly had no expertise. For that very reason, the statute provides for a two-year
tolling period to allow for study concerning the application of the terms at issue and specifically
to consider the fair use issues presented here.

The term "technological measure" is so broad that it could potentially include everything
from a program like DeCSS to the application of bailing wire twisted around a book. Even the
terms "offer to the public, provide, or otherwise traffic" are too vague, since Section 1201 has no
scienter requirement (as compared to ' 1202). Equally problematic, as discussed more fully
below, is the meaning of the term "authority of the copyright owner" in Section 1201(a)(3): what is this
"authority," and by whom and how is it granted? Similarly vague are the terms "any technology,
product, service, device, component, or part thereof" - particularly as they apply to the rapidly
changing internet. While these words are sufficiently precise in relation to the selling of "black
boxes" to descramble cable transmissions, they are far too vague to permit anyone to distinguish
between programs with "substantial non-infringing uses" and those that violate the statute. In the
context of the wide open reaches of the internet, where any speaker can be a pamphleteer, the
meaning of the statute becomes exceedingly fuzzy. The DMCA's vague definitions also present
a real and chilling threat of self-imposed censorship of speech. Dr. Touretzky provided a clear
example of this at trial when he discussed the effect it would have on him if the Court issued an
injunction or declared DeCSS illegal under the DMCA:

[Touretzky] Well yeah. I see this as having a chilling effect on my ability as a
computer scientist to express myself . . . The language that - in
which I try to express myself is the computer language and if the
Court upholds this injunction, what would happen is that certain
uses of computer language, my preferred means of expression
would be illegal. They'd be enjoined. And that means that
anything I do from now on has the potential to be ruled illegal.
And furthermore, what I've tried to show with the gallery, even if I
just decided never to try another line of computer code again, I
wouldn't be any better off because simply writing English, if I
wrote it with the same precision as I used in my plain English on
an HTML file would accomplish the same thing. So I could
merely by using the kind of precision that I've been trained to use
as a computer scientist simply by expressing myself that way, I
could be opening myself up to legal liability.

Q: Dr. Touretzky, would a declaration by the Court that the CSS [sic]
descriptions are illegal have a similar chilling effect compared to an
injunction?

[Touretzky] Well, it would certainly. It would certainly make me afraid to publish
things like that; yes. Any indication by the Court that this was illegal
would concern me, yes.

Trial Tr. at 1084-86.

III. THE COURT SHOULD NOT ISSUE AN INJUNCTION
PROHIBITING DEFENDANTS FROM POSTING DECSS

A. Plaintiffs Have Failed To Prove Any Threatened or Actual Injury;
The Court May Not Rely on Hearsay To Infer Such Injury

The actions of Corley, a media defendant, have damaged no one. By the time he posted
DeCSS on his website, anyone seeking DeCSS already had it or could easily obtain it elsewhere.

The LiVid group, for example, had DeCSS almost two months before Corley did. Neither
posting the DeCSS program nor anything else that defendants did are likely to be the cause-in-
fact of the proliferation of any illegally copied DVDs on the internet or of any other alleged harm
to plaintiffs.

In the present case, plaintiffs had nearly ten months (from the time they learned of
DeCSS through the trial) to collect evidence that they were injured by defendants or by DeCSS.
Mikhail Reider, an experienced investigator who received "specialized training in Internet
investigations" from the Department of Justice and from the High Technology Crime
Investigators Association (Trial Tr. at 649-50), had the near limitless resources of the MPAA at
her disposal. Yet, the MPAA, with all of its offices and investigators throughout the world, did
little to investigate a problem that plaintiffs claim threatens their very existence. Collecting
admissible, as opposed to hearsay, evidence would have required Ms. Reider to click a few
buttons and download a large file (if such a file in fact existed). It would have involved exactly
the same steps plaintiffs claim the general public will routinely undertake to download pirated
movies. Alternatively, plaintiffs could have subpoenaed the web sites offering movies for
download to determine whether movies in fact were available and whether DeCSS was used to
copy them. Had such evidence existed, plaintiffs surely would have produced it.

Not only did plaintiffs fail to present any evidence that DeCSS has caused them injury,
but the evidence from plaintiffs' own files, contrary to what plaintiffs repeatedly told the Court
prior to trial, indicates that they believed that DeCSS was not a threat. In November 1999, for
example, after plaintiffs learned of DeCSS and had the opportunity to examine it, the Copy
Protection Group of the MPAA agreed that the MPAA's position on the utility should be as
follows:

The DVD CSS hack software does not do the consumer any favors.
From the standpoint of typical viewers of entertainment content,
the purchase of the actual DVD-Video provides much better value
than using the hack and storing the files for playback. In fact,
enjoying the content from the actual DVD is more convenient, is
more reliable, and is certainly cheaper when you take into account
the cost of the storage capacity (4.7 Gbytes and larger) for storing
the hacked content files using your hard drive or recordable media.
(Defendants' Exhibit CF).

At trial, plaintiffs stipulated on the record that there was no direct evidence of anyone
using DeCSS to copy or pirate DVDs. Trial Tr. at 334-36. After all the time that has passed,
and the total absence of proof of any injury to plaintiffs resulting from DeCSS, plaintiffs cannot
be heard to complain either that they suffered any injury or that DeCSS presents a threat of
irreparable injury. Since proof of injury is required by Section 1203 to establish a claim under the
DMCA (and irreparable injury is required for an injunction), plaintiffs have failed to meet their
burden of proof in this case and are not entitled to relief under the statute.

In an effort to rescue their case, plaintiffs offered hearsay, innuendo and other
inadmissible evidence at trial, primarily in the form of web pages and screen shots from various
internet sites, from which they asked the Court to infer that illegal copying using DeCSS has
occurred. It would be error for the Court to rely on such evidence. See Moore v. United States,
429 U.S. 20 (1976); Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 238 (5th Cir. 1988).
Plaintiffs could have subpoenaed and deposed the proprietors of these web sites to determine
whether DeCSS had been used to decrypt the movies allegedly available on them for download.
They did not. Any testimony from plaintiffs' witnesses about the perceived effect these sites or
others like them may have on the market for DVDs is purely speculative. The Court has no way
of knowing whether movies are in fact available on these sites or, if they are, how those movies
were decrypted. Assuming movies are available, plaintiffs have presented no evidence that
DeCSS was used to decrypt them. Many utilities and devices (such as rippers and copy cards),
can decrypt DVDs equally well and often faster and with greater ease than by using DeCSS.
Moreover, the "piracy" of DVDs, both online and in the form of hard goods (actual DVDs), was a
problem for plaintiffs long before DeCSS was created. (See Defendants' Exhibit CX). On the
evidence before the Court, there is no basis to reasonably infer that DeCSS has been used for any
illicit purpose or that it has caused plaintiffs any harm.

After admitting that their initial claims of irreparable injury were exaggerated and
speculative, plaintiffs offered the Court a new theory. Instead of being injured by piracy,
plaintiffs asserted they had been injured by fear and a loss of security. Subjective and
unsubstantiated fear cannot rise to the level of injury required under the statute. Likewise, a
mere loss of "security" cannot entitle plaintiffs to relief. Interpreting the statute to allow
otherwise would render the injury requirement of Section 1203 meaningless. Obviously, if a device or
utility circumvents an access control as defined in the DMCA, there is a resulting "loss of
security" as to such control. However, if this fact alone equated to injury, there would have been
no reason for Congress to include the word "injury" in ' 1203. The statute would simply have
permitted an affected person to file an action upon learning of such a device or utility. Congress
clearly must have intended that a plaintiff show an injury separate and apart from just knowing
that their protection has been breached.

B. Summers v. Tice Does Not Apply To This Case. Its Application
Would Radically Change Copyright and First Amendment Law
In A Way That Is Not Only Unintended and Unconstitutional,
But Also Horrific In Its Potential Consequences

Having failed to present competent proof of injury, plaintiffs cannot now shift the burden
of proof onto defendants -- i.e., make defendants prove that they did not injure plaintiffs.
Causation is a Constitutional requirement when seeking an injunction against speech. A plaintiff
must satisfy causation by showing that there is a direct causal connection between his alleged
injury and the defendant's challenged action. 15 Moore's Federal Practice ' 101.41[1] (Matthew
Bender 3d ed.). Even if there were no First Amendment issues in this case, "[c]ausation in fact is
traditionally an indispensable element of [a] plaintiff's prima facie case . . . and must be proved
by a preponderance of the evidence." Rubel v. Eli Lilly and Company, 1991 U.S. Dist. LEXIS
2103, *5-6 (S.D.N.Y. Feb. 22, 1991).

The "alternative liability" theory, like that invoked by the California Supreme Court in
Summers v. Tice, 33 Cal.2d 80 (1948), is inapplicable here. The procedural elements necessary
to utilize this theory and the policy reasons underlying it do not exist in this case. In this District,
"[t]o invoke alternative liability the plaintiff must (1) join all defendants who may have caused
the injury in fact, (2) show that each defendant acted tortiously and (3) establish that plaintiffs
through no fault of their own are unable to identify which defendant caused the injury." Rubel v.
Eli Lilly, 1991 U.S. Dist. LEXIS at *9. The rationale for shifting the burden of proof in such
cases is that "without this device both defendants will be silent, and plaintiff will not recover;
with alternative liability, however, defendants will be forced to speak, and reveal the culpable
party or else be held jointly and severally liable themselves." Hymowitz v. Eli Lilly and Co., 73
N.Y.2d 487, 505, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 493 U.S. 944 (1989).
Courts apply the alternative liability theory only where the defendants have better access to
information than the plaintiffs, and in which there are a relatively small number of possible
defendants who are all joined and properly before the court. Id.

Plaintiffs do not meet these criteria. Plaintiffs have not joined as defendants all of the
parties who may have "provided" or "trafficked in" DeCSS or in any other utility that can decrypt
or copy a DVD. This is a "crucial" condition to the application of the alternative liability theory.
210 East 86th Street Corp. v. Combustion Engineering, Inc., 821 F. Supp. 125, 149 (S.D.N.Y.
1993)(citing Gaulding v. Celotex Corp., 772 S.W.2d 66, 69 (Tex. 1989), Restatement 2d Torts '
433B(3) comment (h); see also Thompson v. Johns-Mansville Sales Corp., 714 F.2d 581, 582-83
(5th Cir. 1983)(rejecting alternative liability in the absence of joinder of all possible defendants
because applying the theory would beg the question of causation entirely), cert. denied, 465 U.S.
1102 (1984); In re "Agent Orange" Products Liability Litigation, 597 F. Supp. 740 (E.D.N.Y.
1984)(applying alternative liability theory in a "unique case" in which all conceivable defendant
manufacturers of the offending product and all conceivable class action plaintiffs were before the
court).

Plaintiffs and the MPAA were aware of the availability of such ripper utilities as Power
Ripper, DoD Speed Ripper, CSS-cat and others. They could have joined as defendants the
proprietors of websites "providing" or even linking to any number of these utilities, but chose not
to. They could have, as a consideration for withdrawing the case against the other defendants,
sought this information. They did none of these things.

The alternative liability theory also requires that a plaintiff be able to prove that at least
one of the defendants it has joined actually caused the injury complained of. 210 East 86th Street
Corp., 821 F. Supp. at 149. Plaintiffs cannot satisfy this element either, having admitted that
other means have been and continue to be available to the public to copy DVDs.

Another requirement for invoking the alternative liability theory is the defendants must
be shown to have better access to information relevant to causation than the plaintiff. E.g.,
Hymowitz v. Eli Lilly, 73 N.Y.2d at 505. They have made no such showing. Plaintiffs here
possess vastly superior resources, employ large numbers of well-trained technical personnel and
experienced, government-trained investigators, and can routinely consult experts on more
difficult technical issues. Mr. Corley, on the other hand, is an independent journalist with no
technical training who operates a monthly magazine and a website on a shoe-string budget. With
all of their resources, plaintiffs -- if in fact they were damaged -- certainly have better access than
defendants to the relevant information. In this case, shifting the burden of proof would be unfair
and unconstitutional. There are other burden shifting theories, but they are equally inapplicable
to the case at bar.

C. The Injunction Will Be Ineffective

An injunction order is "the strong arm of equity, that never ought to be extended unless to
cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in
damages. Detroit Newspaper Publishers Association v. Detroit Typographical Union No. 18,
471 F.2d 872, 876 (6th Cir. 1972) (quoting 3 Barron & Holtzoff, Federal Practice and Procedure
(Wright ed.) at 1431, now 11 Wright & Miller at 2942), cert. denied, 411 U.S. 967 (1973).
Plaintiffs failed to establish any injury - let alone the great injury necessary for an injunction -
as a result of defendants' posting of DeCSS and therefore are not entitled to an injunction. More
important, any injunction this Court issues will be ineffectual.

The evidence at trial showed that there are thousands of internet sites offering or
mirroring DeCSS. Enjoining defendants from posting or linking to DeCSS would be futile if it
cannot stop the distribution of the utility. Any equitable relief the Court issues will have no
effect on the thousands of other sites throughout the world that offer DeCSS. These sites will
continue to post DeCSS, discuss DeCSS, and make it available to millions of internet users
regardless of what the Court does here.

An equitable order should not issue where it will accomplish nothing. Courts routinely
refuse to grant equitable relief where, as here, doing so would be futile. See e.g., Giles v.
Harris, 189 U.S. 475 (1903)(cautioning against rendering "mere [declarations] in the air" and
refusing to grant equitable relief where it would have no effect); Lewis Publishing Co. v.
Wyman, 228 U.S. 610 (1913)(declining to grant injunction where issue was moot); United States
v. State of Texas, 523 F. Supp. 703, 735 (E.D. Texas 1981)(primary requirement for equitable
relief is that it will be effective in accomplishing its purpose); Townsend v. Queen, 473 F. Supp.
198 (N.D. Ill. 1979)("it is an age old axiom that equity will not do a useless thing"). For these
reasons, the Court should decline to exercise its equity powers in this case.

D. The Public Interest is Not Served
By Granting Plaintiffs An Injunction

Assuming that plaintiffs have demonstrated irreparable injury (they have not), defendants
have shown that an injunction banning the distribution of computer programs like DeCSS will
have a dramatic and far-reaching impact not just on the litigants themselves, but on the public at
large. As Dr. Touretzky pointed out, code is speech: there is no significant difference between
the DeCSS source code, the DeCSS object code, or a detailed description in English of the
DeCSS algorithm. Any person competent in basic level computer skills can translate any one of
these into another. Thus, by enjoining one form of the DeCSS code, the Court would effectively
be banning all detailed, scientific discussion of the utility. This would not only chill an
important form of discourse, but would constitute an impermissible infringement upon the First
Amendment.

The Court must consider the public's interests before it acts. Indeed, this Circuit has
noted that, as courts of equity, courts "may go much further both to give or to withhold relief in
furtherance of the public interest than where only private interests are involved." Brown &
Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1121 (2d Cir. 1975), cert. denied, 426
U.S. 911 (1976); Yakus v. U.S., 321 U.S. 414, 441 (1944)(same); Housing Works, Inc. v. Safir,
101 F. Supp. 2d 163 (S.D.N.Y. 2000) (granting a permanent injunction, in part, in order to
protect public's First Amendment rights to free speech in public places). See also Tilton v.
Capital Cities/ABC, 827 F. Supp. 672 (N.D. Okla. 1993)(denying plaintiff a preliminary
injunction banning the broadcast of allegedly defamatory television program, in part, on grounds
that public interest was better served by unrestricted speech). Here, the public is best served by
allowing full access to and discussion of DeCSS. In this manner, the public's knowledge of such
utilities will permit a fuller understanding of encryption technology, and foster continued
advancements in that field and competition and innovation in the DVD player market.

CONCLUSION

The DMCA on its face, and as plaintiffs seek to have this Court interpret and apply it,
violates the First Amendment. If it is not construed to permit fair use, as defendants argue, the
Court must find that the statute is unconstitutional not only with respect to computer code, but as
to all circumvention devices. In any event, these plaintiffs have suffered no imminent damage
recognizable under the law and their application for an injunction should be denied. The
preliminary injunction should be lifted and judgment entered in favor of defendants.

This brief addresses several of the issues the Court must consider in deciding this
case, as well as specific issues the Court raised at trial. Given the space limitations, however,
defendants have not attempted to brief all of the potential issues that may arise on appeal and do
not waive their rights to raise all such issues on appeal. Additionally, because the trial concluded
only two weeks ago, this brief assumes the Court's familiarity with the facts and with the
memoranda of law already before the Court.

Congress delayed the effective date of the prohibition against individuals'
engaging in acts of circumvention, Section 1201(a)(1)(A) ("no person shall circumvent a technological
measure that effectively controls access to a work protected under this title") until October 28,
2000, so that the Library of Congress could undertake a rule-making procedure concerning the
scope of the exemptions to that section's prohibitions. Ironically, throughout this entire action, it
has been entirely legal to use DeCSS to decrypt a DVD (assuming for present purposes only that
doing so may constitute "circumvention" within the meaning of Section 1201, which it does not) in
order to engage in any of the non-infringing activities described in this brief.

See Defendants' Exhibit BBS (article by Professors Appel and Felton); Trial Tr. at
889-896, 898-901 (testimony of Professor Peter Ramadge regarding the potential benefits of
making fair use of the high quality digital content of DVDs for developing research algorithms);
Trial Tr. at 1096-98 (testimony of Professor Andrew Appel regarding benefits of having access
to unencrypted digital content of DVDs).

See also H.R. Rep. No. 105-551, pt. 2, at *26 (1998)("The Committee [on
Commerce] has endeavored to specify, with as much clarity as possible, how the right against
anti-circumvention would be qualified to maintain balance between the interests of content
creators and information users. The Committee considers it particularly important to ensure that
the concept of fair use remains firmly established in the law.")

Professor Ginsburg has also expressed this argument in stronger terms, stating
that "without an appropriate fair use limitation," the copyright holders' control of access
"becomes . . . an Über-copyright law." See From Having Copies to Experiencing Works: the
Development of an Access Right in U.S. Copyright Law, Public Law & Legal Theory Working
Paper Group (
http//papers.ssrn.com/paper.taf?abstract_id'222493), Paper Number 8 at 16-17.

See Trial Tr. at 132 (testimony of Dr. Shamos that DVDs will replace VHS
format).
The stipulation can be found at Trial Tr. at 334-36.

Plaintiffs' view of the statute is akin to saying that only a person who can build a
copying machine may make copies of a passage in a book for fair use purposes.

There is an unproven allegation in the California DVD case that defendant "knew
or should have known" that DeCSS was an "improperly obtained" trade secret, but this allegation
is false, and can certainly not be assumed as a fact in this case.

For more on the DMCA as a prior restraint, defendants respectfully refer the
Court to their Motion to Vacate the Injunction.

Unlike when the Court ruled on the preliminary injunction motion, there is now a
full evidentiary record before the Court. The facts are far different than as alleged by plaintiffs
when the Court initially rejected defendants' argument that the DMCA was overbroad and vague.
Accordingly, it is appropriate for the Court to address these issues anew.

The Supreme Court has likened it, "from the reader's viewpoint to a vast library
including millions of readily available and indexed publications . . . [while] [f]rom the
publisher's point of view, it constitutes a vast platform from which to address and hear from a
world wide audience." Reno v. ACLU, 521 US 844, 853 (1997).

The evidence also shows a pattern of plaintiffs misleading Congress and the
public about the need for the anti-circumvention protection, the ramifications of DeCSS and the
facts of this case. See Defendants' Exhibit BD (falsely suggesting that the public presently could
purchase a Linux DVD system); Exhibit BF (falsely suggesting to the public that the sole
purpose of DeCSS is to allow "thieves" to steal MPAA members' intellectual property); Exhibit
BS (falsely stating to Congress that DVD Audio would not be released because of DeCSS; that a
Linux DVD player is "available on the market"; and that DeCSS would result in "massive
replication and distribution" of plaintiffs' movies); Exhibit PE (falsely stating to Congress that
without strong anti-circumvention legislation, thousands of pirated DVDs, each one as "pure and
pristine as the first" would flood the market); Exhibit ADM (falsely stating to the Copyright
office that a Linux DVD player is "available in the market today" and that DeCSS could not have
been created for Linux).

See also Defendants' Exhibit CG (in which the MPAA states as follows about the
CSS hack by DeCSS: "So it was hacked; no big deal even if you download it, you can't use it
(there's no equipment available). Besides, it's much cheaper and easier for you to buy an extra
copy than to go through the effort to generate a copy using the hacker's system. Besides, the
hacked version lacks all the features (the techies insist on "functionality") of the real
McCoy you're better off with the real deal."); Defendants' Exhibit RK (Warner Home Video
Executive James Cardwell tells CNN that "there is no economic incentive" to hack DVDs).

Irreparable injury should not be presumed here. Irreparable injury is presumed in
a copyright infringement action upon proof of infringement. Here, there is no evidence
infringement to give rise to such a presumption. Further, if the Court relies on copyright law for
the principle that injury may be presumed under the DMCA, it should find that fair use and other
elements of the copyright law also must be read into the statute.

The court in Broadcast Music, Inc. v. Xanthas, Inc., 855 F.2d 233, 238 (5th Cir.
1988), faced a similar issue. There, BMI brought an action against a jukebox operator alleging
that it had committed various acts of copyright infringement. After a bench trial, the district
court found the defendant liable for 182 counts of infringement. The court found liability on
approximately 40 of these counts based upon hearsay evidence consisting of statements made by
proprietors of establishments with jukeboxes. The appeals court reversed these counts, holding
that it was error for the district court to have relied on hearsay evidence to establish a violation of
the copyright statute. Id. See also Andree v. Ashland County, 818 F.2d 1306, 1312 (7th Cir.
1987)(plaintiff failed to establish it suffered any injury; court could not draw inference from
evidence of poor attendance at rock concert that cause of such poor attendance was County's
attempt to enforce its ordinance - evidence was hearsay and, thus, not competent).

The Court should give no weight to the testimony offered by plaintiffs' three
experts. For example, Michael Shamos admitted that he did not do most of the "experiment"
about which he testified, but instead assigned the job of designing and conducting it to Eric
Burns. Morever, Eric Burns' deposition testimony makes clear that Dr. Shamos grossly
exaggerated what little involvement he did have in the experiment. Compare Shamos Test. (Trial
Tr. at 74-77)(I was there for part of the IRC exchange and when the transfer of the movies was
completed) with Defendants' Exhibit XXX/Burns Deposition at pp. 81-92)(Dr. Shamos was not
present for any part of the IRC conversation or transfer of the movies). Dr. Fisher, who has no
experience in the motion picture industry, merely opined that, all things being equal, some
people will not pay for something that they can get for free. Trial Tr. at 583-84. Here, of course,
all things are not equal in that there are significant "costs" to download "free" movies (such as the
lengthy time (more than 20 hours according to Dr. Shamos) to obtain them and prepare them for
online distribution; the cost of the necessary powerful computing equipment and a high-speed
internet connection (Dr. Shamos' connection cost his university $280 per month); and the
degradation in quality between a legitimate DVD and a DivX movie (See testimony of Peter
Ramadge, Trial Tr. at 921-27)). Finally, Mr. Schumann's testimony that DeCSS had nothing to
do with Linux or LiVid was based entirely on hearsay and, in any event, was refuted by the first-
hand testimony of Jon Johansen and Matthew Pavlovich.

A key element in the Summers analysis is "certainty" that damage was caused by
one of the defendants. Given all the ways that a DVD can be pirated without DeCSS (rippers,
copy cards, etc), all of which were known by plaintiffs before the appearance of DeCSS, there
can be no certainty that plaintiffs were injured by DeCSS. On November 19, 1999, for example,
in an e-mail to Brad Hunt, Mikhail Reider stated that she had been aware of the existence of the
DoD Ripper, which performs the same function as DeCSS, for several months and that "there are
dozens of versions of these things all over the internet." Defendants' Exhibit UZ.

The best reason for rejection of the Summers v. Tice rule in this case is
fundamental fairness. "The real reason for the rule that each joint tortfeasor is responsible for the
whole damage is the practical unfairness of denying the injured person redress simply because he
cannot prove how much damage each did, when it is certain that between them they did all . . ."
Summers, 33 Cal. 2d at 85-86.

"Market share" liability grew out of the inability of injured plaintiffs in mass-tort
cases to identify and join all possible responsible defendants. See Sindell v. Abbott Laboratories,
26 Cal.3d 588, cert. denied, 449 U.S. 912 (1980). In order to invoke market share liability, the
plaintiff need not join all potential defendants, but rather must join as defendants the
manufacturers who produced or supplied a "substantial share" of the relevant market of the
offending product. Rubel v. Eli Lilly, 1991 U.S. Dist (S.D.N.Y.) LEXIS at *18. This has no
application to the instant case. Two other burden-shifting theories, enterprise liability and
concert of action liability, have been used by courts to shift the burden of causation. Neither are
applicable here, because both theories presuppose joint action by multiple potential defendants
who are joined as defendants. See, e.g., Hall v. E.I. Dupont de Nemours & Co., 345 F. Supp.
353 (E.D.N.Y. 1972) (enterprise liability requires a plaintiff to prove that the proximate cause of
injury is the joint action of defendants, joined in the action, all of whom jointly controlled the
risks of causing such injury); Hymowitz, 541 N.Y.S.2d at 946 (concert of action requires an
understanding, express or tacit, to participate in a >common plan or design to commit a tortious
act' (quoting Prosser and Keaton on the Law of Torts ' 46, at 323 (5th ed. 1984)). There has been
no evidence in this case that any of the persons responsible for the proliferation of the various
decryption utilities have acted in concert with each other.

In Withington v. Roberts & Co. 22 F. Supp 460 (D. Del 1938), the court held that
a motion to restrain the defendant company from holding a meeting of its stockholders for the
purpose of amending its certificate of incorporation and reducing its capital by distributing its
assets to its stockholders would be denied, where it appeared that at the time of the hearing the
meeting had already been held, the action complained of taken, and the assets substantially
distributed, so that the matters represented a fait accompli. See also Greenfield v. Schultz, 173
Misc. 2d 31; 660 N.Y.S.2d 624 (N.Y. Co. 1997)(an injunction will not issue to restrain a fait
accompli or a fortiori a fait non accompli), modified, aff'd in part and vacated in part, remanded,
251 A.D.2d 67, 673 N.Y.S.2d 684 (1st Dep't 1998); Matter of Doe v. Roe, 158 A.D.2d 759 (3d
Dept 1990)(same); Town of Oyster Bay v. New York Tel. Co., 75 A.D.2d 598 (2d Dept
1980)(same).